1. General
1.1 These Terms and Conditions of Use (“Terms”) are entered into by and between Innovative Bilateral Designs, LLC (“Company,” “we,” “us,” or “our”) and licensed Eye Movement Desensitization and Reprocessing (“EMDR”) clinicians (or those who are working under the supervision of a licensed EMDR practitioners that have completed an EMDRIA-approved Basic Training Course (“EMDR Clinicians”), and EMDR patients, including the guardians or parents of EMDR Patients (“Patient(s)”) (EMDR Clinicians and Patients collectively referred herein as “You,” or “Your”) with respect to your use of the Internet site located at www.InnovativeBilateralDesigns.Com (“Site”) and the software that you will download from the Site that consists of our proprietary software for use by EMDR Clinicians with their Patients as a therapy tool (the “Software”). If a visitor to the Site is not an EMDR Clinician or a Patient, then such visitor may not download or purchase the Software. Supplemental terms and conditions or documents that may be posted on the Site from time to time, are hereby expressly incorporated into these Terms by reference.
1.2 Company makes no representation that the Site is appropriate or available in other locations other than where it is operated by Company in the United States. The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Company to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
1.3 The Site and the Software are not a substitute for EMDRIA-approved training and are specifically for EMDR Clinicians who have completed an EMDRIA-approved training course who use the Software as a therapeutic tool with their EMDR Clinicians’ Patients, but not the general public. In addition, the Site and the Software should not be used by individuals for purposes of self-therapy and by therapists who have not received EMDRIA-approved training.
1.4 These Terms also govern your use of the Site. By visiting or using the Site, including without limitation to, accessing, using, purchasing and downloading the Software (together, the “Services”), you agree to be bound to these Terms and the terms of the Software license, which are hereby incorporated herein by reference. In consideration of your use of and access to the Services (and the promises and obligations herein, and intending to be legally bound), you and Company hereby agree that BY USING AND ACCESSING THE SERVICES, YOU AGREE TO AND WILL BE DEEMED TO BE BOUND BY THESE TERMS. You also agree that your electronic consent will have the same legal effect as a physical signature. You acknowledge that by accepting these Terms, you have read, understood and agree to be bound by these Terms.
1.5 If you do not want to be bound by these Terms, do not use the Site or download the Software. The information available on or through use of the Services, including but not limited to data, text, articles, content, software, images, graphics, photographs, audio and video clips, links and references and other materials (collectively, the “Information”) is provided for informational purposes only. The Information is not intended to be a substitute for professional psychological advice, diagnosis, cure or treatment.
2. Changes in Terms
Company shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of the Site and the Services. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to, posting the revised or additional terms and conditions on the Site. You are responsible for reviewing the Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by Company to these Terms. ANY ACCESS OR USE OF THE SITE AND/OR THE SOFTWARE BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than by Company shall be valid or enforceable against Company unless expressly agreed to by Company in a writing signed by a duly authorized officer of Company.
3. Termination
3.1 These Terms are effective until terminated by Company. Company may terminate these Terms without notice and at any time. In the event of termination, the restrictions imposed on you with respect to the Content, the disclaimers, indemnities, limitations of liabilities, the Binding Arbitration Clause (Section 20) and any provision that is reasonably necessary to accomplish or enforce the purposes set forth in these Terms shall survive termination. Company shall also have the right without notice and at any time to terminate the Services or any portion thereof, or any other products or other services offered through Company, or to terminate any EMDR Clinician’s or Patient’s right to access or use the Services or any portion thereof.
3.2 Company may send marketing emails to EMDR Clinicians, for example, to offer new versions of the Software, which would be offered for purchase. You may always cancel or modify marketing communications you receive from us by following the instructions contained within our promotional e-mails.
4. Ability to Contract
4.1 You affirm that you are at least eighteen (18) years of age or older or are a parent or guardian of a Patient accepting these Terms on behalf of yourself or your child. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
4.2 If you are the parent or guardian of a Patient that is under 18 years old, then such Patient may not use the Services with an EMDR Clinician unless you have executed all required written consents required by the EMDR Clinician, including guardian or parental consent for their child to engage in EMDR therapy. For patients under eighteen (18) years of age, guardian or parent agrees to be available to join session if needed or requested by EMDR Clinician.
5. EMDR Clinicians
5.1 EMDR Clinician is required to comply with all laws, accreditation, medical or other board rules, or other rules and regulations applicable to the administration of EMDR therapy to Patients using the Services. EMDR Clinician’s relationship with Patients is directly between the EMDR Clinician and the Patient.
5.2 EMDR Clinician acknowledges and agrees that it is solely responsible for all agreements, consents, notices and other interactions with Patients. EMDR Clinician hereby agrees to obtain affirmative written consent from Patients prior to making video or audio recordings of an EMDR Session.
5.3 Without limiting the generality of the foregoing, EMDR Clinician is solely responsible for all billings and collections from Patients, and Company shall have no liability whatsoever to EMDR Clinician concerning any amounts owed by any Patient.
5.4 EMDR Clinician will use the Services only in accordance with applicable standards of good professional practice. While the Services can facilitate and improve the quality of service that EMDR Clinician offers to Patients, many factors can affect a Patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors may be and in what proportion they affect an outcome. EMDR Clinician shall be solely responsible for its use of the Services, and the provision of services to Patients.
5.5 As part of the Services, Company provides a platform for the EMDR Clinician to communicate with Patients during an EMDR Session. Company does not provide any medical advice or professional, legal advice, or representations in any way regarding any medical, professional or legal issues associated with the EMDR Clinician or goods or services offered by the EMDR Clinician, including but not limited to, any compliance obligations or steps necessary to comply with any state or federal laws and regulations.
5.6 EMDR Clinician should seek its own legal counsel regarding any legal and compliance issues, and should not rely on any materials or Content associated with the Services in determining EMDR Clinician’s compliance obligations under the law.
6. Patients
6.1 No therapist-patient relationship exists between Patient and Company because we do not provide psychological, medical or healthcare counseling, treatment, or consultations. The Services shall not be deemed to establish a standard of care. If you suffer from any mental health–related issue, please consult with a licensed mental health professional.
6.2 Company is a provider of a type of software to be used by EMDR Clinicians with their Patients. Patient acknowledges and agrees that use of the Services is not intended for self-treatment and that the Patient is prohibited from using the Services without an EMDR Clinician.
6.3 Patient hereby acknowledges and hereby provides informed consent to the potential side effects, adverse consequences, and risk factors to Patient related to the administration of the EMDR therapy that the EMDR Clinician provides during and after an EMDR Session (the “Side Effects”) which may or can include, but are not limited to:
Feelings of relaxation
Feelings of fatigue
Emotional distress
Feeling uncomfortable
Physical sensations
Resurfacing or upsetting memories
Physical sensations like tingling
Feeling emotionally sensitive
Vivid dreams
6.4 Patient further acknowledges and agrees that Company bears no responsibility for the occurrence of any of the Side Effects and expressly waives any claims against Company for (i) the occurrence of any such Side Effects; and (ii) any consequential or incidental occurrences causing damages arising out of, or relating to, the occurrence of any such Side Effects.
7. Modifications and Updates to the Services
7.1 Company reserves the right, in its sole discretion, to modify or discontinue offering the Services, in whole or in part, including any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.
7.2 We may from time to time develop and provide updates for the Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (“Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. If there are any Updates, Company will send you notice to the email address you provided when you paid for the Services.
7.3 You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions for the Services.
8. Payments
8.1 You agree to pay Company all charges at the prices then in effect for the Software you or other persons may use to purchase the Software, and you authorize Company (through its payment processor) to charge your chosen payment provider for the Software download. You agree to make payment using that selected payment method. Company reserves the right to correct any errors or mistakes in pricing that it makes even if it has already requested or received payment. Sales tax will be added to the sales price of the Software download as deemed required by Company. Company may change prices at any time. All payments shall be in U.S. dollars.
8.2 We may contact you via the email address you provide when you purchase the Software if there is a problem with your credit card, among other reasons including, but not limited, to offer new Software to EMDR Clinicians.
9. Communications with Company
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Services (“Communications”) provided by you to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Communications for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
10. Types of Software Offered with the Services/Free Trial of Software
10.1 Company offers two types of Software downloads for EMDR Clinicians to use with their Patients: (1) the “Offline Version” and (2) the “Online Version.” The Offline Version of the Software is available for download for EMDR Clinicians who wish to use the Software for in-person EMDR therapy sessions with their Patients. The Online Version of the Software is available for download for EMDR Clinicians who wish to use the Software for remote or telehealth EMDR therapy sessions with their Patients.
10.2 Company offers a thirty (30) day free trial of its Offline and Online Versions of the Software to EMDR Clinicians and EMDR Clinician groups on a per seat basis (the “Free Trial Period”). The Free trial Period begins from the date that the EMDR Clinician downloads the Offline Version of the Software with the proper activation code and terminates after the Free Trial Period. Free trials of the Software are limited to one per person or per group.
10.3 EMDR Clinician shall have sole responsibility and Company assumes no liability for any Patient data that EMDR Clinician may choose to maintain on its/their computer(s).
10.4 THE THIRTY (30) DAY FREE TRIAL PERIOD IS PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS, NOR ANY LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE, COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS ONE THOUSAND UNITED STATES DOLLARS ($1,000US). NOTWITHSTANDING ANYTHING TO THE CONTRARY, EMDR CLINICIAN SHALL BE FULLY LIABLE FOR ANY DAMAGES ARISING OUT OF EMDR CLINICIAN’S USE OF THE FREE TRIAL. ANY DATA AND CONFIGURATIONS ENTERED INTO EMDR CLINICIAN’S FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL SERVICE.
11. No Refunds
All sales are final and there will be no refunds, unless you provide documentary evidence that the Software does not work properly.
12. Investigations
12.1 You agree to cooperate with and assist Company and its representatives in good faith, in any investigations, including by providing us with such information as we may reasonably request.
12.2 Company has the right but not the obligation to monitor the Site for violations of these Terms.
12.3 Company further has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Services if we believe in good faith that it is reasonably necessary (a) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (b) to respond to claims asserted against Company, (c) to enforce and to ensure your compliance with these Terms, including the investigation of potential violations, (d) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (e) to protect the rights, property or safety of the Company, its users or members of the public, and (f) for the purpose of operating and improving the Services (including for customer support purposes).
12.4 Company also reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
13. Content
The text, images, photographs, graphics, logos, illustrations, descriptions, data, and other material provided on the Site and the Services, as well as the selection, assembly and arrangement thereof, are referred to collectively as the “Content.” The Content may contain errors, omissions, or typographical errors or may be out of date. Company may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational purposes only and is not binding on Company in any way except to the extent it is specifically indicated to be so. Unless otherwise noted, all Content is protected by patent, copyright, trademark, common law and other proprietary rights that are owned by Company or by third parties that have licensed their use to Company. You may view and use the Content only for your personal information and for no other purpose. You must retain all patent, trademark, copyright and other proprietary notices on downloaded or printed information, and any such downloads or copies are subject to these Terms and shall remain the property of Company and/or its licensors and/or suppliers. Except as provided in the foregoing, Company does not grant to you or any person any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Content on or transmitted through the Site, including without limitation by transferring, downloading or otherwise copying any Content onto any disk drive or other storage medium. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in writing signed by an officer of the Company, is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the any of the Services. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Company’s and/or its licensors’, suppliers’ or third party owners of patents, trademarks or copyrights without the express written permission of an officer of the Company, our licensors or suppliers, or the third party owner of any patent, trademark and/or copyright. Use of Content is strictly prohibited unless authorized in writing by an officer of the Company and requests for permission should be directed to the contact submission form on the website.
14. Code of Conduct
You agree not to:
14.1 Express or imply that any statements you make are endorsed by us, without our express prior written consent signed by a corporate officer of the Company;
14.2 Remove any copyright, trademark or other proprietary rights notices contained in or on the Information, the Site or Services;
14.3 Prepare derivative works from the Services;
14.4 Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Site or Information;
14.5 Engage in spamming or phishing attacks or otherwise interfere with, disrupt, damage or compromise the Services or our systems or the access of any user, host or network in any way, including through the use of viruses, worms, or other files, scripts or programs designed to damage or allow unauthorized access to the Services, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, mail-bombing the Services or otherwise imposing an unreasonable or disproportionately large load on the Site or the Software;
14.6 Use the Site or Services in any manner that is unlawful, including accessing the Site, Services and/or Information from any location where such access may be illegal or otherwise prohibited;
14.7 Forge any TCP/IP packet header (or any part of the header information) or otherwise manipulate identifiers in order to disguise the origin of any of the materials in any e-mail or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
14.8 Harvest or collect information about the Site’s visitors or members without their express consent.
14.9 Transmit (a) any content or information that is unlawful, fraudulent, deceptive, threatening, abusive, vulgar, derogatory, sexist, racist, hateful, harassing, libelous, defamatory, obscene, indecent, pornographic, sexually explicit, blasphemous, harmful, invasive of the privacy rights of others, or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication;
14.10 Restrict or inhibit any other visitor from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
14.11 Access, copy, store or use any aspect of the Site or the Software for any purpose other than your own personal use;
14.12 Distribute, disclose, publish, sell, rent or otherwise expose any aspect of the Services to any third party for any purpose;
14.13 Circumvent our systems or policies;
14.14 Use any spider, site search/retrieval application, robot or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site and its Content. Access, search, collect information from, or otherwise interact with the Services whether by manual methods or by use of any software, device, script or robot, or by any other means (automated or otherwise), including by “scraping,” “crawling” or “spidering” the Services, to systematically retrieve Content in order to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like (except that crawling is permissible without further authorization if done in accordance with the provisions of the robots.txt file only);
14.15 Access the Services other than through the currently available, published interfaces that are provided by Company, unless you have been specifically authorized in a separate writing signed by an officer of the Company;
14.16 Mirror or frame any page, feature, functionality, tool or Content, copy any aspect of the Services, or use or display Company’s name or any of Company’s other trademarks, logos or proprietary materials, without the express written consent signed by an officer of the Company;
14.17 Access, tamper with or use non-public areas of any of the Services, Company’s computer systems, or the technical delivery systems of Company’s providers;
14.18 Probe, scan, or test the vulnerability of any system or network of Company or its providers, or breach or circumvent any security or authentication measures of such system or network;
14.19 Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party to protect the Services;
14.20 Attempt to decipher, decompile, disassemble or reverse engineer any of the code or Software used to provide the Services;
14.21 Otherwise abuse the Services or breach these Terms; or
14.22 Attempt to do any of the foregoing, or advocate, encourage, assist or permit any third party to do any of the foregoing.
15. Disclaimer of Website Accessibility
The Site and Services are directed to EMDR Clinicians and their Patients, not the general public. While Company is making every effort to ensure that the information available on our Site is accessible to all. Company is striving for Section 508 and WCAG 2.0 compliance. If you experience any difficulty in accessing Content on the Site, please contact us and we will make every effort to assist you. Be sure to include the following in your message:
Your full name;
Your phone number and email address; and
The web address (URL) of the web page that you are having issues accessing
Describe in detail what accessibility issues you are having with the web page. If you are using assistive technology to access the web page, give us details about the technology you are using and how you are using it – this will allow us to try and duplicate your problem.
Company is not responsible for the accessibility of content on external sites linked from our Site.
Additional accessibility resources and assistance are available at https://www.ada.gov/.
16. Your Representations and Warranties
In addition to those stated elsewhere, you represent and warrant to Company, if applicable, that:
16.1 EMDR Clinician represents and warrants that EMDR Clinician is licensed or working under the supervision of a licensed EMDR practitioner and that EMDR Clinician has completed an EMDRIA-approved Basic Training Course.
16.2 You have the power and authority to accept and agree to these Terms;
16.3 If you are entering into these Terms on behalf of a corporate entity, you have all necessary legal, corporate or other power and authority to make, execute, deliver and consummate these Terms and perform all of your stated obligations, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in these Terms, in which case the terms “you” and “your” shall refer to such corporate entity. If, after your electronic acceptance of these Terms, Company finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in these Terms. Company shall not be liable for any loss or damage resulting from Company’s reliance on any instruction, notice, document or communication reasonably believed by Company to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Company reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of these Terms for transactions entered into by you, anyone acting as your agent and anyone who uses the Services, whether or not authorized by you;
16.4 These Terms are valid and binding upon you; and
16.5 You will not use the Site or Services in violation of any applicable law, rule, regulation, or agreement with any third party or in any manner that infringes upon the contractual or privacy rights of any third party.
17. Limitation of Liability
17.1 Company will not be responsible for any act or omission by you or any third party, including, without limitation, any failure by you or any person to perform any contractual or other obligations.
17.2 YOUR USE OF THE SERVICES, INCLUDING ANY DATA PROVIDED, IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (A) THE SITE AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; AND (B) COMPANY AND ITS AFFILIATES, AGENTS, SERVICE PROVIDERS, EMPLOYEES, OFFICERS, DIRECTORS, CONSULTANTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “COMPANY’S REPRESENTATIVES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, THE ACCURACY, CONDITION AND AVAILABILITY OF THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR NEEDS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, NOR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE AND THE SERVICES, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND/OR SERVICES AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ANY OF COMPANY’S REPRESENTATIVES, WHETHER MADE ON OR IN CONNECTION WITH THE SITE OR SERVICES SHALL CREATE ANY WARRANTY. COMPANY MAKES NO WARRANTY REGARDING RESULTS THAT MAY BE OBTAINED, ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED, OR ENFORCEABILITY OF ANY CONTRACT PROVIDED FOR USE BETWEEN YOU AND ANY THIRD PARTY.
17.3 IN NO EVENT SHALL COMPANY AND COMPANY’S REPRESENTATIVE OR SUPPLIERS BE LIABLE FOR LOST REVENUE OR PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, LOSS OF DATA, LOSS OF GOODWILL, OR THESE TERMS (HOWEVER ARISING, INCLUDING GROSS NEGLIGENCE). EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREUNDER AND FRAUD OR INTENTIONAL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE TO YOU IN AN AMOUNT GREATER THAN WHAT YOU PAID FOR THE SERVICES. THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. YOU AGREE TO BRING YOUR CLAIMS AGAINST COMPANY WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS WAIVED.
17.4 Some states and provinces do not allow the disclaimer of implied warranties of merchantability and fitness for a particular purpose, so the above disclaimers or exclusions may not apply to you. In the event that applicable law imposes implied warranties on the Services, notwithstanding the foregoing, such implied warranties shall not have a duration greater than one (1) year from the relevant purchase or access date; shall terminate automatically at the end of such period; and shall be disclaimed and excluded to the fullest extent permitted by law. You may also have other rights under applicable law which vary from state to state.
17.5 The Site and the Services are controlled and operated from its facilities in the United States. Company makes no representations that the Site and the Services are appropriate or available for use in other locations. Those who access or use the Site and the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
18. Release of Waiver of Claims; Assumption of Risk
YOU HEREBY AGREE TO THE FOLLOWING: (a) to waive any and all claims that you have or may have against the Company and its affiliates, officers, directors, managers, shareholders, owners, employees, contractors, consultants and agents resulting from (i) use of the Site and Services or your inability to use the Site and the Services, (ii) the acts or omissions of any persons with whom you may communicate or interact as a result of your use of the Services, (iii) any Content accessed or viewed in connection with the use of the Services, and (iv) false, misleading, incomplete, inaccurate representations made by any EMDR Clinician in connection with the Services; and (b) to release the Company and its affiliates, officers, directors, managers, shareholders, owners, employees, contractors, consultants and agents from any and all liability from any loss, damage, injury (whether bodily, emotionally or monetary) or expense that you or any users of the Site and Services may suffer as a result of the use of Services, whether or not Company has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed its essential purpose and due to any cause whatsoever, including, but not limited to, negligence or breach of contract on the part of the Company, in the design or manufacture of the Site and Services.
19. Indemnification
You agree to fully indemnify, defend, and hold harmless Company and any of Company’s Representatives and other representatives (each an “Indemnitee”), harmless from and against any and all from any action, loss, liability, damages, recoveries, settlements, expense, claim or demand (including attorney, accountant, and expert witness fees and costs) (collectively “claim”), known or unknown, contingent or otherwise, arising directly or indirectly out of or in connection with (i) any act or omission by you, including, your use of the Site and the Services, or your breach of these Terms or any other agreement with any third party or with Company, (ii) your violation of any law or the rights of Company or any third party, and/or (iii) any act or omission on the part of any Indemnitee (provided that you shall not be obligated to indemnify as to acts or omissions by Indemnitees to the extent such claim arose as a direct consequence of an intentional act by such Indemnitee). If Company elects to control its defense, Company may settle or resolve such claim in its sole discretion and the foregoing indemnification shall still apply. if Company elects not to control its defense, you will do so. However, you may not settle or resolve any such claim without our express written consent unless the resolution requires a withdrawal or dismissal (with prejudice), or full and final release in our favor of all claims asserted against us, all without admission of liability, payment obligation, or agreement to refrain from any undertaking, on the part of Company or any Indemnitee. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. No statements, advice or information provided to you by any employee or representative of Company shall create any other warranty or alter the provisions of this section. The provisions in this section shall apply to the fullest extent permitted by law.
20. Dispute Resolution
20.1 Informal Dispute Resolution. If you have any issues or problems concerning the Site or the Services, we encourage you to notify us immediately at the contact submission form on the website. so that we can attempt to resolve your issue. Most issues or problems can be resolved quickly and amicably. However, in the event that that you or Company or Company’s Representatives are unable to come to an amicable resolution within 15 days of your submission, you or Company or Company’s Representatives may bring a formal proceeding.
20.2 Formal Dispute Resolution: Binding Arbitration. You agree that any and all disputes will be submitted to and finally determined by arbitration as set forth in Sections 20.3 -20.9 below. In such case, you would incur additional expense in connection with such arbitration. The decision of the arbitrator will be final and binding and neither Company and its Representatives nor you will have the right to appeal such decision, whether in a court or in another arbitration proceeding. You understand that, by agreeing to arbitrate disputes as provided in these Terms, you, Company, and Company’s Representatives are waiving any and all statutory and other rights that we may have to a trial by jury in connection with any such dispute, claim or controversy. You may decline this agreement to arbitrate by e-mailing us at the contact submission form on the website. within 30 days of first accepting these Terms. Notwithstanding the provisions of this section and Sections 20.3-20.6; 20.8-20.9 and subject to Section 20.7, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other monetary or equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of the party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you, Company, and Company’s Representatives are each waiving the right to a trial by jury or to participate as a plaintiff or class user in any purported class action or representative proceeding. Further, unless you, Company, and/or Company’s Representatives agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
20.3 Arbitration Procedures. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_0.pdf and a separate form for California residents at www.adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/active-rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitration will be conducted by one impartial arbitrator (who may be a former judge, practicing attorney or person who is not an attorney), selected by mutual agreement or, if you and Company cannot agree, the arbitrator will be selected in accordance with the AAA Rules.
20.4 Arbitration Process and Applicable Law. Unless you and Company otherwise agree in writing, the arbitration will be conducted in New York, New York by one arbitrator. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will not award punitive damages to either party and you and Company will each be deemed to have waived any right to such damages. The arbitrator will, in rending his or her decision, apply the substantive law of the State of New York (excluding its choice of law rules that would require the application of the laws of another jurisdiction). The award of the arbitrator will be rendered within the time frame specified in the AAA Rules. It will include a written explanation of his or her decision and specify the basis for any damages, which may include the costs and expenses of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above (Section 17) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The written decision of the arbitrator will be final, binding and non-appealable and may be enforced in any court of competent jurisdiction.
20.5 Arbitration Fees. Except for the limitations on fees as set forth in Section 20.4 above, your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. If your claim for damages is less than $75,000, however, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
20.6 Confidentiality. The arbitration proceeding will be confidential. The existence of any matter submitted to arbitration, and the award, will be kept in confidence by you, Company, and the arbitrator, except as required in connection with the enforcement of such award or as otherwise required by applicable law.
20.7 Exceptions to Agreement to Arbitrate. Either you or Company may assert claims, if they qualify as exceptions to the subject matter that applies to arbitration, in small claims court or in federal court in Hartford, Connecticut. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Site or the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
20.8 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
20.9 Venue for Other Types of Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal court in Hartford, Connecticut or in the state court of Litchfield County, Connecticut. Both you and Company consent to venue and personal jurisdiction there.
21. Notices
You hereby agree to accept notices (including service of process) by any of the following means to the email and mailing address you provided when you paid for the Software. Notice to you will be effective immediately upon personal delivery, 24 hours following transmission by email, and 72 hours following delivery to a governmental postage service or commercial courier (provided we have paid all fees for first-class or next-day service). You may give us notice by using our online contact form on the website. or by mail to P.O. Box 254, Litchfield, CT 06759. You warrant that you will maintain accurate and effective contact information for the purposes of complying with the requirements of this section. Failure to maintain accurate and effective contact information will be considered a breach of these Terms. Your notice to us shall be effective only upon confirmation of our actual receipt.
22. Independent Contractors
You acknowledge the relationship of the parties as independent contractors only and you agree that no joint venture, partnership, employment, or agency relationship exists between you and Company.
23. Force Majeure
None of Company or Company’s Representatives are or will be liable for any losses caused directly or indirectly as a result of causes or events beyond the control of Company including, but not limited to, natural disasters, acts of God, war, terrorism actions, DNNEC attacks, or decrees of governmental bodies, epidemics, pandemics, exchange of market rulings, failure of the Internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of the obligations of Company and Company’s Representatives with respect to the effected elements under these Terms will be suspended for the duration of such Force Majeure Event.
24. Electronic Documents
We may, in our sole discretion, seek your consent to these Terms and certain other agreements on the Site and/or the Services by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Terms and by an affirmative “click” on boxes containing the words, “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms or accessing the Site and/or the Services or using any of the Content after you have had an opportunity to review these Terms, you acknowledge and agree: (a) that you intend to form a legally binding contract between you and Company; (b) that you have read and agree to the terms and conditions of these Terms; (c) that you agree and intend that these Terms to be the legal equivalent of signed, written contracts, and equally binding; (d) that by electronically agreeing to these Terms, you acknowledge that you have received a copy of these Terms by your viewing a web page containing a hyperlink to the web page where these Terms are displayed or otherwise; and (e) that if you are executing these Terms on behalf of others, you hereby certify that you are an authorized representative authorized by law.
25. Miscellaneous
These Terms are governed and construed in accordance with the laws of the State of Connecticut, without giving effect to the choice-of-law rules of that State. You agree to submit to the exclusive jurisdiction of the federal courts of Connecticut for resolution of disputes relating to or arising out of these Terms. In the absence of federal jurisdiction, you agree to submit to the exclusive jurisdiction of the state court located in Litchfield, Connecticut, United States of America. You agree to waive any jurisdictional, venue or inconvenient forum objections to such courts. All disputes shall be resolved in the English language. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms (and the Policies that are incorporated herein by reference) is these Terms between Company and you relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. These Terms or any right, obligation or remedy hereunder are not assignable, transferable, delegatable or sublicensable by you except with Company’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Company may assign, transfer or delegate these Terms or any right or obligation or remedy hereunder in its sole discretion. No waiver by either Company or you of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in these Terms are inserted only as a matter of convenience and in no way defines or explains any section or provision hereof, and the singular shall include the plural and the plural the singular. You hereby acknowledge that you have carefully read all of the terms and conditions of Company’s Privacy Policy, which can be accessed by visiting our website located at www.Innovativebilateraldesigns.com and clicking on “Privacy Policy” and you agree to all such terms and conditions.
26. Questions
Should you have any questions, comments or complaints regarding these Terms or the Services, please contact Support by using the contact submission form on the website.
Last updated July 30, 2024